First, huge KUDOS to our new State Engineer, Dick Wolfe, for taking a step back and talking to the water users before trying to promulgate rules. But the fact that the State wants to punish water users who want to improve irrigation efficiency just doesn’t make sense to us.
The Arkansas River Compact of 1948 “equitably” divided the waters of the Arkansas River between Colorado and Kansas. The Compact was intended to preserve the ’status quo’ on the river, requiring that the flow at the State Line not be “materially depleted in usable quantity or availability for use…”
Colorado was found to be in violation of the Compact, and ultimately was required to pay millions in damages to Kansas. For the most part, Colorado’s violation of the Compact was due to unregulated ground water development and use since inception of the Compact.
Now the State is concerned that improvements in efficiencies of surface water use will cause additional depletions to the Arkansas River. Essentially, increased efficiency will reduce return flows causing additional depletions to the river.
So in September last year the State Engineer sent out proposed rules which would apply “to any person or entity whatsoever using, claiming or in any manner asserting any right to the use of surface waters of the Arkansas River under the authority of Colorado in whole or in part for agricultural irrigation…” Basically, any person desiring to increase irrigation efficiency would have to obtain approval from the State Engineer first, and if such improvements would decrease the return flows – that is, increase consumption – there would be a return flow replacement obligation. In other words, put in a center pivot and you’ll be forced to put additional water back to the river.
This puts an additional burden on farmers with short water supplies who want to increase their irrigation efficiencies. First there’s the cost of the improvements themselves, then there’s the cost of hiring an engineer – potentially - to do the return flow evaluation, and then there’s the cost of establishing means to actually make the additional return flows.
There’s a lot of problems on the Arkansas. Poor water quality, particularly problems with salinity, threaten to destroy agriculture in the Basin. As CSU is finding a lot of the problems can be solved through increases in efficiency – both on farm, and conveyance efficiency. So to add an additional layer of necessary approval to address these needs is just a further burden on the livelihood of the Basin.
It seems to us that, while the State did what it could to protect the water users in the context of the Compact litigation, the State is placing the entire burden of its own historical – and maybe historic – misteps on the water users with little or no assistance.
The State has, essentially, given up. Instead of coming up with a comprehensive solution – or at least trying to – the State has told the water users it is up to them and the State will simply regulate. The State is in the best position to develop a solution for the Basin as a whole, not individual water users. It is almost cowardly how the State, after losing big to Kansas, has come crawling back and is now placing the onerous on the water users.
The problems on the Arkansas require basin-wide changes in management and administration, not additional burdens on water users. The folks in the Division 2 Office need to get out of their cubicles, stop staring at their computer screens writing rules and developing models, and do something good for the Basin and its water users.
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Similar problems are faced in the Republican Basin. Farmers make good efforts to be good stewards, especially since this usually provides the largest benefits over the long run.
Many conservations measures have been implemented over the years. Miles of terraces, small water impoundments, etc,
to conserve both water and topsoil. Much of this was cost shared by the feds to the tune of 90% with Pick Sloan funds. The feds were out there promoting and funding as they saw a lot of benefits in protecting the main flood control features of the river. Kansas tends to be the biggest benefactor in flood control. It seems fitting that the feds also stand 90% of the cost of getting CO and NE into compliance.
The straw that seems to have broken the camel’s back has been the conversion to minimum and no till planting. Where by, significant amounts of the previous crop’s residue is retained to again conserve water and soil. Kansas has employed many of these same practices, itself also. But is really only telling CO and NE that it wants water only in specific quantities at the times they specify.
As Ever, Greg Heiden
What about conjunctive use? I’m not familiar with the Arkansas, is it similar to the South Platte basin? would’nt the State be ahead to buy some of the wells that have some of the more senior decrees and simply pump the needed water into Kansas at the border?
If irrigation efficiencies are made to be illegal what about low-flow toilets? and all the re-use that is being proposed in municipal water use? There is a double standard in Colorado water law, but if the Arkansas irrigators are forced to do this stuff the cities should also obey.
Greg Heiden is correct in that the feds should help offset some of the costs. I think the State also should shoulder its part of the responsability, but before the entire system is wrecked from over-regulation we should throw in some pumps and give Kansas what they say they want, water, at the border where we can give them the depletions at the same time.
First, why are these rules necessary? Did the state not shut down over 900 irrigation wells in the Arkansas valley in 1998? And ten years later there is still no improvement in surface flow? What does the water engineer responsible for the shutdown have to say?
Second, the same for the S. Platte. We have over 2,000 shut down since 2002 and a few thousand more under some pretty severe pumping restrictions. Where is the water?
Chuck Sylvester, the extreme longshot for governor a few years ago, called for an audit of the S. Platte. He is right on target. Let’s find out where the water is going. Let’s first audit the cities to make sure they have no expanded use and that their exchanges and change-of-uses are working as the engineers theorized in water court.
Then how about the lined gravel pits from Denver extending now to over 30 miles north, how about the return flows they are blocking from getting back to the river? A prime example: where I-76 and Hy. 85 intersect there is a swamp below a large irrigation canal. It has been submerged so long the trees died. Whoever owns the land where the swamp is ought to have to augmentate it, or the gravel pit owners ought to have to drain the swamp to the river, or the ditch company ought to line its canal. Otherwise, it is a waste of water.
Back to the audit: how much expanded use is under all the ditches? Once at a water meeting a lawyer was blaming center pivots for causing reduced return flows. I asked, how can that be if there was no increase in the acres irrigated upon the conversion from flood irrigation to pivot?
The answer is that there really isn’t that much more consumptive use as long as acreage is not increased. For sure, there can be some, simply because a pivot makes it easier to irrigate or a farmer might switch to more water needy crops. But in any case is that as much as the reduction caused by putting pivots above the ditch? Get on Google earth, you can see they are all over the place, many on the same ditches who have been the most vehement Boulder bosom buddy objectors to wells.
But in the Ark. Valley it seems the new rules apply to only those who became more efficient after 1998. So anyone who put a pivot above the ditch prior to that is off the hook? even if was put in way after a senior 1950’s well that is now shut off?
And if owners of shut off wells found a way to survive post – Terminator, can you blame them? The state took away their means of making a living and offered no compensation. The same state that decades earlier encouraged the drilling of irrigation wells. The same state that later tried to integrate groundwater rights with surface rights but failed miserably in its attempt.
But don’t blame the state, blame the farmer who did what he had to do to survive and did so legally until the enforcement of ex-post facto law became popular under “my rhyme is no crime” King Hobbs.
How about all of the dense vegetation in the river bottoms? Couldn’t the state offer some incentives to landowners to return it to a more native prairie like condition? And is salt ceder being eradicated?
Anyway, it seems the state’s Ark valley rules is nothing more than an attempt to punish those who increased their efficiency in order to survive after getting their wells shut down. We see it up here in the S. Platte, too, the objectors even after the legality of their use of certain water rights come under question are relentless in pursuing their obsession to make sure wells owners never ever recuperate.
It’s time for a “Come to Jesus” meeting on the S. Platte, let’s have a complete audit, let’s check out everything, and for sure let’s make the Water Court accountable.